but such onely which are for the better government of the old And also he said plainly that it appears by the Statute of 1 Mariae That the former Statutes shall not be taken by Equity for by these the President and Commons have power to commit a delinquent to Prison and this shall be intended if they shall be taken by Equity that every Gaoler ought to receive him which is so committed But when it is provided by 1 Mariae specially that every Gaoler shall receive such Offenders by this it appears That the former Statute shall not be taken in Equity And so he concluded that Iudgment shall be entred for the Plaintiff which was done accordingly College of Physicians versus Butler Sir William Jones's Reports p. 261. THe President of the College and Comminalty of the faculty of Physick London brought debt against one George Butler The Writ was quòd reddat Domino Regi Praesidenti Collegii ac Comminal ' facultat ' Medicor ' London Qui tam pro Domino Rege quà m pro seipso sequitur 60. li. quas eis debet And the Declaration was in the name of the said President by the said name qui tam pro Domino Rege quà m pro seipso sequitur c. which contained the Charter of H. 8. made Anno Regni sui 10. and confirmed by Act of Parliament Anno Regni sui 14. as it is contained in the Statute of 14 H. 8. and that the said Defendant minimè ponderans the said Statute or the Penalty thereof exercised the faculty of Physick in London although he was not admitted so to do by the President and the College or Comminalty of the faculty of Physick London by the space of 12 months before the said Action brought per quod actio accrevit eidem Domino Regi dicto Praesidenti qui tam pro dicto Domino Rege quam pro seipso sequitur c. ad exigend ' habend ' of the said Defendant pro dicto Domino Rege eodem Praesidente Colleg ' praedict ' 60 li. videlicet 5 li. pro quolibet mense praedict ' 12 Mensium praedict ' Tamen Desendens praedicto Domino Regi Praesidenti non reddidit unde the said President said that he was damnified to the value of 100 li. The Defendant pleaded the Statute of 34 H. 8. whereby liberty is given to every one of the Kings Subjects that hath knowledge and experience of the nature of Herbs Roots Waters or the operation of them by speculation or practice to exercise apply and administer to any external ulcer wound apostumation outward tumor sive morbo alicui alio any Herb Ointment Bath Pultess or Plaster according to the experience and science of the said diseases or other Maladies eisdem consimil or Potion pro calculo Strangury vel febr without any impediment any Statute or other thing to the contrary And saith that he was a Subject and having experience and science by speculation and practice in the nature of Herbs Roots and Waters applied and ministred to divers of the Kings subjects Herbs Ointment Bath Pultess Plasters and Potion to Vlcers Diseases Maladies Strangury and Ague talibus aliis morbis illis consimilibus prout ei bene licuit And to the residue pleaded Not guilty The Plaintiff replied to the first Plea and pleaded the Statute of 1 Mariae whereby the said Charter and the said Act of 14 H. 8. was confirmed in the whole Whereupon the Defendant demurred and shewed for cause of Demurrer that the Replication was a departure from the Declaration And upon Argument in the Common Pleas Iudgment was given by the opinion of all the Iudges for the Plaintiff and thereupon Error was brought in the Kings Bench. Two Errors were assigned the one was the departure the second was because that the Writ was in the name of the King and the President and the Declaration was in the name of the Informer also And after argument at the Bar by Council on both sides the Iudges delivered their opinions The Chief Iustice began and then Jones Whitlock and Crook They all said that Iudgment ought to be affirmed First they agréed that the Writ and Declaration were good and although some Precedents be that upon a penal Law the Writ be to answer the Informer qui tam pro seipso quà m pro Domino Rege sequitur Yet they thought that the most proper and better way of a Writ was to answer the King and Informer for the debt was given to them by moieties therefore it is not so proper to demand all for the Informer and yet to have a several judgment for the King and the Informer for the moieties and so is Partridge and Crokers case in the Comment But when it is by information there it shall be that the Informer informs for the King and himself Another exception was taken to the Writ because it is in the name of the President and not of the College also And also it was contrary in the end of the Declaration where it is said unde actio accrevit to the said King and President for to have 60 li. of the Defendant For the King one Moiety and for the President and College the other Moiety But it was adjudged by the Court that notwithstanding it was good for First although the Incorporation was by the name of President and College notwithstanding the suite is by the Charter given to the President and there may be a Corporation by one name to purchase lands and otherwise yet it shall sue by another name 11 E. 1. a Corporation was by the name of Master Wardens Brothers and Sisters of Rouncevill and by the said Patent it is said they should sue by the name of Master and Wardens of Rouncevill 2. Although that the Action is given by way of suite to the President onely yet the Recovery and money recovered shall be to the President and College therefore the Conclusion for to have the money to the President and College was held good The 3. point was resolved that the Plea in Bar was not good for the liberty given is disjunctive for outward medicines to use Plasters Oyntment Bathes c. and for 3 diseases to wit the Stone Strangury and Agues onely yet they jumble all together that he ministred the Ointments and Potions to all the said Maladies which cannot be for he may not administer a Potion unless to the said 3 diseases and no other 4. It was resolved that it was not any departure but that the Replication was subsequent and pursuant to the Declaration But for the main matter they said nothing to wit whether the Statute of 1 Mariae took away the force of the Statute of 34 H. 8. for they gave their Iudgment upon the Bar by reason it was naught Onely Crook spake to this point and it séemed to him that the Statute of 34 H. 8. is not repealed or avoided by 1 Mariae Butler versus the President of
authority in that case 3. The fines and amercements to be imposed by them by force of the Act do not belong to them but to the King for the King hath not granted the fines and amercements to them and yet the fine is appointed to be paid to them in proximis Comitiis and they have imprisoned the Plaintiff for non-payment thereof 4. They ought to have committed the Plaintiff presently by construction of Law although that no time be limited in the Act as in the Stat. of West cap. 12. De Servientibus Ballivis c. qui ad compotum reddend ' tenentur c. cum Dom ' hujusmodi servientium dederit eis auditores compoti contingat ipsum in arreragiis super compotum suum omnibus allocatis allocandis arrestentur corpora eorum per testimonium auditorum ejusdem compoti mittantur liberentur proximae gaolae Domini Regis in partibus illis c. in that case although that no time be limited when the Accomptant shall be imprisoned yet it ought to be presently as it is holden in 27 H. 6. 8. and the reason thereof is given in Fogossa's Case Plow Com. 17. that the generality of time shall be restrained to the present time for the benefit of him upon whom the pain shall be inflicted and therewith agréeth Plow Com. 206. b. in Stradling's Case And a Iustice of Peace upon view of the force ought to commit the offender presently 5. For as much as the Censors had their authority by the Letters Patents and Act of Parliament which are high matters of Record their proceedings ought not to be by word and so much the rather because they claimed authority to fine and imprison And therefore if Iudgment be given against one in the Common Pleas in a Writ of Recaption he shall be fined and imprisoned but if the Writ be Vicontiel in the County there he shall not be fined or imprisoned because that the Court is not of Record F. N. B. in bre de Recaptione so in 47 F. N. B. a Plea of Trespass vi armis doth not lie in the County Court hundred Court c. for they cannot make Record of fine and imprisonment and regularly those who cannot make a Record cannot fine and imprison And therewith agréeth 27 H. 8. Book of Entries The Auditors make a Record when they commit the Defendant to prison A Iustice of Peace upon view of the force may commit but he ought to make a Record of it 6. Because the Act of 14 H. 8. hath given power to imprison untill he shall be delivered by the President and the Censors and their Successors reason requireth that the same be taken strictly for the liberty of the Subject as they pretend is at their pleasure And the same is proved by a Iudgment in Parliament in this Case For when this Act of 14 H. 8. had given power to the Censors to imprison yet it was taken so literally that the Gaoler was not bound to receive them which they committed to him and the reason thereof was because they had authority to do it without any Court And thereupon the Statute of 1 Mar. cap. 9. was made that the Gaoler should receive them upon a pain and none can be committed to any prison if the Gaoler cannot receive him but the first Act for the cause aforesaid was taken so literally that no necessary incident was implyed And where it was objected that this very Act of 1 Mariae hath enlarged the power of the Censors and that upon the word of the Act It was clearly resolved that the said Act of 1 Mariae did not enlarge the power of the Censors to fine or imprison any person for any cause for which he ought not to be fined and imprisoned by the said Act of 14 H. 8. For the words of the Act of Q. Mary are according to the tenor and meaning of the said Act Also shall send or commit any Offender or Offenders for his or their offence or disobedience contrary to any Article or clause contained in the said Grant or Act to any Ward Gaol c. But in this Case Bonham hath not done any thing which appeareth within this Record contrary to any Article or clause contained within the Grant or Act of 14 H. 8. Also the Gaoler who refuseth shall forfeit the double value of the fines and amerciaments that any offender or disobedient shall be assessed to pay which proveth that none shall be received by any Gaoler by force of the Act of 14 H. 8. but he who may be lawfully fined or amerced by the Act of 14 H. 8. and for that was not Bonham as by the reasons and causes aforesaid it appeareth And admit that the replication be not material and the Defendants have demurred upon it yet forasmuch as the Defendants have confessed in the Bar that they have imprisoned the Plaintiff without cause the Plaintiff shall have Iudgment And the difference is when the Plaintiff doth reply and by his replication it appeareth that he hath no cause of action there he shall never have judgment But when the Bar is insufficient in matter or amounteth as this Case is to a confession of the point of the action and the Plaintiff replyeth and sheweth the truth of the matter to enforce his Case and in Iudgment of Law it is not material yet the Plaintiff shall have Iudgment for it is true that sometimes the Count shall be made good by the Bar and sometimes the Bar by the Replication and sometimes the Replication by the Rejoynder c. But the difference is when the Count wantethtime place or other circumstance it may be made good by the Bar so of the Bar Replication c. as appeareth in 18 E. 4. 16. b. But when the Count wanteth substance no Bar can make it good so of the Bar Replication c. and therewith agrée 6 E. 4. 2. a good case and mark there the words of Choke vid. 18 E. 3. 34. b. 44 E. 3. 7. a. 12 E. 4. 6. 6 H. 7. 10. 7 H. 7. 3. 11 H. 4. 24. c. But when the Plaintiff makes a Replication Sur-rejoynder c. and thereby it appeareth that upon the whole matter and Record the Plaintiff hath no cause of action he shall never have Iudgment although that the Bar or remainder be insufficient in matter for the Court ought to judge upon the whole Record and every one shall be intended to make the best of his own case Vid. Rigeways case in the 3. part of my Reports 52. And so these differences were resolved and adjudged betwéen Kendall and Heyer Mich. 25 26 Eliz. in the Kings Bench. And Mich. 29 30 Eliz. in the same Court betwéen Gallys and Burbry And Coke Chief Iustice in the conclusion of his argument did observe 7 things for the better direction of the President and Commonalty of the said Colledge in time to come 1. That none can be punished for practising
part for we labour only for part so that 14. is in force as it was at first in every branch thereof notwithstanding 34 H. 8. for 1 Mariae restored this and that which the 14. gives is Medicines not as it is generally to be intended and so to include Chirurgery but all that was proper to Physicians 34 H. 8. although it allow men to give Medicines yet it is at their perils for if a man die under their hands it is as it was at Common Law By the Statute of 34. to repeal all of 14. which was contrary to 34. which does not in the least name the 14. yet it is repealed for so much as concerns Agues c. The Statute of 33 H. 8. for trial of Treason is repealed And after by 1 Mariae our Case is a far stronger Case that every Clause shall be in force notwithstanding any Statute c. these words ought not to be void if by construction they may be made to stand and no Statute withstands this Statute but 34 H. 8. and therefore all which this Statute takes away ought to be restored He confessed the case put of Confirmation of 32 H. 8. Statute of Wills that this doth not take away the Stat. of 34. for it is but an explanation and one being confirmed the other is confirmed And it is plain that the 13 Eliz doth not take away 1 Eliz. for it was in the affirmative and commenced after and therefore it is expounded not to extend to the Bishop As the Statute of contra formam collationis doth not include the Bishop as it was there adjudged And he cited Langton's Case where this point which is the point of departure was adjudged and 10 and 11 Eliz. rot 248. B. R. action by the College versus Eliheus Cornelius and upon these very points Iudgment was given for the College Also the Barr is ill Allow the Statute of 34. were in force yet the Iustification is ultra that which the Statute gives and took the same exception as before 2. There is a departure which was so ruled in Langton's Case and is so in reason Also this is a proper departure when a man relinquishes the title upon which he grounds himself and betakes himself to another And we have not made a departure our title is 14 H. 8. which makes good the Letters Patents then if you repeal the Letters Patents we ought to repeal the 14 H. 8. and it would be absurd for us to commence with 1 Mariae for then we ought to have recited all the Statutes 37 H. 6. 5. 21 H. 7. 25. 18. If a man avow for rent granted by I. S. the other saith that I. S. had nothing in the Land at the time of the Grant the other shews that he was seifed to his use this is a departure for his title to the first was by the Common Law and therefore seeing the Statute was his title it ought to have béen shewed But in our Case the Statute 1 Mariae is not our title to the action but onely removes the impediment 6 H. 7. 8. A condition is pleaded in destruction of a Feoffment and a release pleaded to destroy the condition and no departure but the Feoffment stands with a good title So in our Case Hill 4 Jac. intrat H. 3. Jac. Bagshaw versus Gower Trespass for chasing his Cattle 14 Maii 1 Jac. The Defendant Iustifies as an Estray and that 16 Maii 1 Jac. he delivered them The Plaintiff replies that 15 Maii he laboured and worked them upon which the Defendant demurres This was no departure but the working maintained the Trespass done 14. and made him Trespasser ab initio Mich. 23 24 Eliz. C. B. rot 2297. Pledal and Clark Trespass for chasing his Cattle in Barkshire the Defendant justifies damage fezant the Plaintiff replies that afterwards he drove them into another County scil Oxford c. and sold them the Defendant demurred and the declaration was in Barkshire yet the sale made him a wrong doer ab initio Where the Replication maintains the title and onely removes the impediment it is good Pasch Jac. B. R. Action upon the Case Wood and Hankford for disturbing him of Toll and intitles himself by Letters Patents of H. 6. The Defendant pleads 28 H. 6. which restores all Franchises The Plaintiff replies 4 H. 7. which revives the first Statute and adjudged no departure for if he pleadeth the resumption and the reviver if there were 20 he ought to plead all Then in our case all is gone and we know not whether he ought to justifie one kind or other 3. For the Iurisdiction This Court is most proper for the Informer and he cited Gregories Case and said If the King might elect to sue in what Court he pleased the Informer might also But however it is out of the Statute of 21 Jac. The title is for the ease of the Subject The preamble c. 18 Eliz. cap. 5. there it appeareth that the common Informer ought to inform in proper person the College was never so nor cannot and in common Information there ought to be the day of the Information c. and there is not any day here 25 Eliz. 12. Knevet informed against Butcher and afterwards was non-suited for which the Defendant prayed to have Costs c. and there the Plaintiff alledged that he was not a common Informer insomuch that this was the first Information that he ever exhibited yet ruled against him insomuch that it was upon a penal law where every one may have the action But in our case it is not so because this is no such Information or Informer within the Statute 40 Eliz. Agar informs against Cavendish and others upon the Statute of 8 E. 4. for Liveries which appoints the Information in C. B. B. Reg. and that they may sue as many as they will and the Exchequer is not named there but inferiour Courts be and Iudgment was given for the Informer But after in a Writ of Error brought it was adjudged that the Information doth not lie in the Exchequer but they resolved that the King might have sued there and therefore the Iudgment shall be good to intitle the King to the intire sum forfeited Richardson said that it was a hard case to prove the King may sue in any Court and he cited 14 E. 3. Countess of Kent's case 40 Ass 35. the King may sue for Spiritual matters in the Temporal Court as a Legacy c. Hill 36 Eliz. rot 135. Hammond Informant upon a penal Statute and died and upon motion by the Attorney General Iudgment was given for one Moiety for the King notwithstanding And the difference betwixt this and Agar's Case that in this case the Informer was well intitled to a Moiety but there not Statutes which take away Iurisdictions of the Courts at Westminster ought to be taken strictly Mich. 44 45 Eliz. Buck informs in the Exchequer for transporting of raw hides in Middlesex
satisfaction and payment of the same fyne soe imposed upon him for the same offence AND FORASMUCH as Wee are well satisfied in our selfe and hold it most reasonable and requisite that a like care and consideration should bée had and taken of all our good subjects inhabiting or resident in other the Diocesses and parts of this our Realme of England not herein abovementioned nor provided for in matters concerning the good and health of their bodies which to effect and to the end that the abuses and irregularities abovementioned may in those parts bee seasonably corrected or tymely prevented and none but able learned and well qualified persons admitted to exercise and practise in Physicke in the parts of this our Kingdome without our said Citty of London and Westminster and the lymitts of seaven miles aforesaid OUR WILL AND PLEASURE is And Wée doe by theise presents for us our heires and successors Grant Constitute and Ordeyne that all and every person and persons whatsoever now or hereafter willing or desirous to exercise or practise Physicke in any the parts of this our Kingdome without the Citties and lymitts aforesaid Doe and shall before hée or they or any of them respectively make any open profession thereof Offer and submitt themselves to the examination and tryall as to their severall abilities and qualifications requisite in that faculty of the President and Elects or Vice-president and Elects in the absence of the President of the Colledge aforesaid or any foure of them for the tyme being whereof the President or in his absence the Vice-president for the tyme being to bée alwayes one To the end that such person and persons as on such Examination or Tryall shall appeare to bée able and qualified for the exercise of that faculty may bée approved and allowed of by testimoniall in writing under the particular hands of the persons respectively so examining and approveing them AND WEE DOE hereby will and require and by theise presents for us our heires and successors give and grant unto the President and Elects of the Colledge aforesaid and in the absence of the President to the Vice-president and Elects of the same Colledge for the tyme being or any foure of them whereof the President or in his absence the Vice-president for the tyme being to bée one from tyme to tyme to receive send for and call before them all and every such person and persons that is or shall be willing or desirous or shall begynn or venture to exercise or practise in the said faculty of Physicke within any the parts of this our Realme of England without the Citty and lymitts aforesaid And them and every of them well faithfully and exactly to examine and make tryall of their severall and respective qualifications and abilities as to the said faculty of Physicke and the exercise and practice thereof And to allowe lycence and approve of such and soe many of them as shall bée by the said Examiners respectively as aforesaid adjudged able and qualified for that profession And thereupon to make and give unto them and every of them soe approved of as aforesaid a testimoniall in writing under the hands of the Examiners respectively as aforesaid AND alsoe to refuse suppresse and reject all and every such person and persons as to the said Examiners respectively appointed as aforesaid shall from tyme to tyme appeare to be insufficient or not duely qualified for the exercise of that faculty AND FURTHER by all just and lawfull wayes and meanes possible in the future to the utmost of their power to prevent or tymely to reforme and correct the abuses irregularities and enormities aforesaid in all and every the parts of this our Realme without our said Citty of London and Westminster and lymitts of seaven miles aforesaid AND our further will and pleasure is And Wee doe by these presents for us our heires and successors Graunt Constitute and Ordayne that noe person or persons whatsoever Except hee or they bee a Graduate or Graduates of Oxford or Cambridge which have or hath accomplished all things for his or their forme without any grace shall doe or may from henceforth exercise or practise or bee permitted to exercise or practise in the said Art or Faculty of Physicke in any part or parts of this our Realme of England without our said Citty and the lymitts aforesaid untill he or they respectively shall be examined tryed and approved of as aforesaid and have and receive a Testimoniall thereof in writing as aforesaid upon paine of forfeiting of five pounds of lawfull money of England unto the said President Fellowes and Comonalty of the Colledge aforesaid and their Successors for every Moneth wherein any such person or persons shall soe exercise or practise in the said Art or Faculty of Physicke as aforesaid being not duely examined and approved of or haveing not had or received his Testimoniall as aforesaid All and every such forfeiture summe and summes of money to be had and recovered in such manner and by such wayes and meanes as the said penalty or forfeiture of Tenn pounds the Moneth for practising without lycence within our said Citty of London or seaven myles thereof as aforesaid is ought or may bee had sued for obteyned or recovered And in which Actions Suite or Suites to bee had brought or prosecuted noe Essoyne wager of Lawe or protection shall or ought to bée admitted or allowed for or to any Defendant or Defendants therein AND WEE WILL and for us our heires and successors Doe hereby graunt that the Playntiffe and Playntiffs in all and every Action and Actions Bill Suite Plaint or Information hereafter brought or to bée brought exhibited or prosecuted for the recovery and obteyneing of the said severall paynes or forfeitures of Tenn pounds the Moneth and five pounds the Moneth any or either of them wherein such Playntiffe or Playntiffs shall or ought to have recover or obteyne his or their Iudgment therein respectively shall have and recover his and theire reasonable Costs of suite to bée from tyme to tyme taxed and assessed by the Iudge Iudges or Iustices of the Court wherein such Action or Actions Bill Playnt or Information shall be brought or prosecuted as aforesaid and shall alsoe have his and theire Execution and Executions for the same in such manner to all intents and purposes as in any Action of debt Case or Trespass is now used or ought to bée had given or done in any of our Courts of Record att Westminster And that the Defendant and Defendants in every such Action and Suite Bill Playnt or Information wherein Iudgment is or ought to bee given for such Defendant or Defendants shall have and recover his and theire Costs of suite in such manner as in any Action or Actions of Debt Case or Trespasse is nowe used or ought to bée had or given in any of our Courts aforesaid AND WEE DOE hereby for us our heires and successors impower and
Westm ' usque diem Jovis prox ' post octabas sancti Hillarii de Judicio suo de super premissis audiendo c. eo quod Cur ' domini Regis hic inde nondum c. Ad quem diem coram domino Rege apud Westm ' ven ' partes predicte per Attornat ' suos predictos Et quia Cur ' domini Regis hic de Judicio suo de super premissis predictis reddend ' nondum advisatur dies ulterius inde dat' est partibus predictis coram domino Rege apud Westm ' usque diem Mercurii prox ' post xviij Pasche de Judicio inde audiend ' c. eo quod Cur ' domini Regis hic inde nondum c. Ad quem diem coram domino Rege apud Westm ' ven ' partes predicte per Attorn ' suos predictos Et quia Cur ' domini Regis hic de Judicio suo de super premissis predictis reddend ' nondum advisatur dies ulterius inde dat' est partibus predictis coram domino Rege apud Westm ' usque diem Veneris prox ' post Crastinum Sancte Trinitat ' extunc prox ' sequen ' de Judicio inde audiendo eo quod Cur ' domini Regis hic inde nondum c. Ad quem diem coram domino Rege apud Westm ' ven ' partes predicte per Attorn ' suos predictos Super quo visis per Cur ' domini Regis hic plenius intellectis omnibus singulis premissis maturaque deliberatione inde habita pro eo quod videtur Cur ' domini Regis hic quod placitum predictum per predictum Thomam Langton qui tam c. superius replicando placitat ' materiaque in eodem content ' bon ' sufficien ' in lege existit ad actionem ipsius Thome Langton qui tam c. versus predictum Edm ' habend ' manutenend ' Ideo cons est quod predictus Thomas Langton qui tam c. recuperet versus prefat ' Edm ' debitum predictum Unde dominus Rex habeat unam medietatem Et predictus Thomas Langton qui tam c. Collegium predictum habeant alteram medietatem juxta formam Literar ' Paten ' predictar ' Statut ' predict ' Quodque idem Thomas Langton qui tam c. recuperet versus predictum Edm ' sex libras tresdecim solidos quatuor denarios pro dampnis suis que sustinuit tam occasione detentionis debiti predicti quam pro mis custagiis suis per ipsum circa sectam suam in hac parte apposit ' eidem Thome Langton qui tam c. per Cur ' domini Regis hic ex assensu suo adjudicat ' Et predictus Edmundus in misericord ' c. Postea scilicet die Sabbati prox ' post octab ' Sancti Martini Anno regni domini Jacobi nunc Regis Anglie sexto coram eodem domino Rege apud Westm ' ven ' predictus Presidens per Attorn ' suum predictum Et cogn ' se esse satisfactum per predictum Edm ' Gardiner de tota parte sua debiti predicti de dampnis predictis que ad ipsum President ' pertinet Ideo ipse idem Edmundus de tota parte ill ' de dampnis illis sit quiet ' c. Quod quidem Recordum coram nob ' sic habitum duximus exemplificand ' In cujus rei testimonium has Literas nostras fieri fecimus Patentes Teste Thoma Flemynge apud Westm ' undecimo die Februarii Anno regni nostri Anglie Franc ' Hibernie sexto Et Scotie quadragesimo secundo Byng Byng Dr. Langton versus Gardiner Croke 's Reports 2 d Part p. 121. DEBT upon the Statute 14 H. 8. cap. 5. by the Plaintiff as President of the Colledge of Physicians in London and of the Corporation of Physicians there For that the Defendant used the Art of Physick in London without Licence from the Colledge there against the Statute and their Charter For which he demanded 5 l. for every month being the penalty given by the Statute The Defendant pleaded the Statute of 34 H. 8. which enables every one to practise Physick or Surgery being skilfull therein notwithstanding any Act to the contrary The Plaintiff replies and shews the Statute Primo Mar. cap. 9. which confirms their Charter and every Article thereof to stand in force any Act Statute Law or Custome to the contrary notwithstanding Hereupon the Defendant demurred First because this general clause in this Law doth not restrain the Statute of 34 H. 8. Secondly that this pleading is a departure For it ought to have been shewn before Stephens argued for the Plaintiff First That the Act of 34 H. 8. is repealed by the Statute of prim Mar. quoad the Colledge of Physicians in London as fully as if it had been by express words recited and repealed For when it confirms the Charter of 14 H. 8. and appoints that it and every part thereof shall stand and be avayleable the Statute of 34 H. 8. cannot stand with it Quia leges posteriores leges priores contrarias abrogant 4 Ed. 4. Porter's Case Co. 1. fol. 25. Secondly that it is not any departure Because there is not any new matter but matter pleaded in reviving of the former or fortification thereof And a Record was shewn Mich. 10 and 11 Eliz. betwixt Bomelins and where the Record was in the same manner as this Record is And there the Plaintiff had Iudgment Wherefore c. And there being none on the Defendants parts to argue The Court upon hearing of the Record gave rule That Iudgment should be entred for the Plaintiff unless c. Dr. Atkins versus Gardiner Croke 's Reports 2 d Part p. 159. SCir fac Vpon a Iudgment in Debt upon the Statute 14 H. 8. by Dr. Langton President of the Colledge of Physicians in London who died before execution had and thereupon the Successor brought a Scir fac to have Execution It was thereupon demurred because the Scir fac ought to be brought by the Executor or Administrator of him who recovered and not by the Successor But upon hearing of the Record without argument the Court held That the Successor might well maintain the Action For the suite is given to the Colledge by a private Statute And the suite is to be brought by the President for the time being And he having recovered in right of the Corporation the Law shall transferr that duty to the Successor of him who recovered and not to his Executors The Action being brought for that he practised Physick in London without Licence of the Colledge of Physicians against the Statute of 14 H. 8. Wherefore it was adjudged for the Plaintiff A Recovery against Dr. Bonham according to the Exemplification 13 Febr. 6 Jacobi JACOBUS dei gratia Anglie Scotie Franc ' Hibernie Rex fidei defensor c. Omnibus ad quos presentes Litere nostre
sued upon the Stat. 5 Eliz. cap. 4. for using any Art or Mystery in which the party hath not béen brought up c. shall be sued and prosecuted in the General Sessions or Assize of the same County where the offence shall be committed If such offence be committed in Middlesex the suite may be in the Courts at Westminster for the intent was onely to limit the County and not such Courts And so he prayed Iudgment for the Defendant Bramston contra for the Plaintiff And as to the last exception that the Information doth not lie in this Court he answered that it cannot be before Iustices of Oyer and Terminer nor ever was so For although the words do not limit this at Westminster yet there is another thing in the case that limits this And this ground is also in Gregories Case and that is that the King ought to have Moiety of the forfeiture and therefore it ought to be where the King's Attorney may better attend 2. This is not an Action popular but given onely to the College and it is a debt to them for which they may sue by Original And it was never the meaning of the Statute to put them to sue before Iustices of Oyer and Terminer or of Assize and so revera the Statute speaks onely of popular Actions upon penal Laws and such which Informers may have But before he came to matter in Law he took exceptions to the Barr for if it was insufficient and no Barr to the Declaration then if it were admitted that the Replication is bad yet the declaration being good the Plaintiff shall have Iudgment thereupon Butler pleaded 34 H. 8. to enable him to practise but when he declares what manner of practice he used he hath excéeded the licence of this Statute by his own Confession and sheweth such practice as is within the 14 H. 8. The words of the 34 be That he may minister to any outward Sore or Swelling or any the like c. and that he may give drinks for the Stone Strangury and Agues Butler shewed that he had experience in Herbs and that he gave Oyntments Plasters Poultesses and Potions to Sores Maladies the Stone Strangury Fevers and such like Potions by the 34 be restrained to 3 Cases But he confesseth that he gave them not onely in those 3 Cases but in others and the party was afflicted with outward Sores Stone Strangury and Agues were common known diseases But others as outward Sores may be with inward distempers more dangerous wherewith he ought not to meddle And he ought to have pleaded in another manner also for he saith Diseases Fevers and such like and the words such like ought to refer to outward Sores not to other diseases And he sheweth that he gave Potions and this ought to have béen with an Anglicè drinks as with Carduus Benedictus Century Possett But the Statute doth not allow Potions Also the word is Agues and he saith Fevers and there is a great difference betwéen Agues and Fevers Agues have intermission Fevers none and a Fever may so inféeble a man that it is not fit that such as Butler give him Physick But he ought to have said Febribus Anglicè Agues And then if the Plaintiff hath made a good declaration and the Defendant an insufficient barr if the Plaintiff upon his replication destroy his declaration he shall not have Iudgment But if the barr be insufficient and the replication onely vain and idle he shall have Iudgment upon his declaration 8 Rep. Dr. Bonham's Case the main point adjudged And 6 Rep. Francis Case the difference is taken where the replication was not well and made bad as to matter in Law It was said 34 H. 8. doth not meddle with the 14 H. 8. And it is plain that the 34 H. 8. did not intend to meddle but with Surgeons for it recites the mischief of their covetousness and therefore it appeareth that it was not the meaning of the Statute to take any thing from the Physicians But the purview of the Statute 34. meddles with the 14 H. 8. that was a cause of 1 Mariae for if credit may be given to Mr. Butler it gives liberty to every one that hath skill in Herbs to minister Potions Outward applications appertain to Surgeons but the giving of Potions appertain to Physicians for Potions plainly be Physick and then 34. takes therefrom that which was given to the College by the 14 H. 8. and if it be permitted that they may give Potions for the Stone c. all the abuses before remedied shall be restored This being in the purview of 34 H. 8. 1 Mariae was made and repeals all that the 34 H. 8. hath taken away from 14 H. 8. And I do agrée if two Statutes be made in the affirmative and the latter controll the former such construction shall be made that both may stand But if the last be Negative either in words or intention the former shall be repealed And here be such words that it is not possible that the other should stand 1 Mariae the words be that it confirms 14 H. 8. so that it shall be in force in every Clause And it is all one as if the words of 14 H. 8. had béen contained within this Stat. 1 Mariae And then how can the 14. and 34. stand together Also the very purpose of this Stat. 1 Mariae is to repeal 34 H. 8. For the rule Dyer 347. is that when 2 Statutes be and one séems to cross the other in substance and no Clause de non obstante in the latter exposition shall be made so as both may stand together if it may be But here is such a Clause notwithstanding any Statute c. and the purpose is apparent to repeal the 34 H. 8. in that part which giveth liberty to unskilfull ignorant persons to practise Physick And 1 Mariae doth stand upon 2 parts 1. It is a confirmation of 14 H. 8. 2. It gives the College further privilege And this part of the Statute were vain and idle if 34 H. 8. as to Physick were not repealed and some such thing was in the minds of the makers of 1 Mariae when they say any Statute to the contrary notwithstanding and there is not any Stat. after the 14. that impeaches this but the Stat. of 34. 2. It cannot be any departure here And I agrée the reasons before But the replication here maintains the title in the declaration and is no new matter and if it were yet it is raised by the barr and then it ought to be allowed in the replication For the Statute of 14 H. 8. being good untill 34. then the Stat. 1 Mariae restores and maintains 14 H. 8. 21 H. 7. 18. A Feoffment was pleaded in barr the Plaintiff shews that he that made the Feoffment was within Age the Defendant rejoyns that there was a custome that Infants of such an age there might make
plead and be impleaded by the name of President onely and the Action shall be brought by that name by which the King enables them to bring their Action and to plead and to be impleaded as 11 H. 7. 27 28. is so that here is a good action and well grounded and by a good name And as to the Plea in Barr it is insufficient because he hath not pleaded according to the Statute For his plea ought to have béen applyed to the Statute for by the Statute the power there given is to administer to outward Sores or Diseases any Ointments Plasters c. and other like and this ought to be according to the skill and knowledge And here the Defendant saith that he had knowledge in the nature of Herbs Roots and Waters c. and did apply Oyntments Potions c. for the Stone c. and such other diseases and he ought to have said according to his knowledge in those diseases and not in other like c. 2. The Administration ought to have béen to outward Tumours c. and here outward is omitted and he hath pleaded generally whereby his plea goeth to the whole and so mistaken 3. Where potions may be applied to the Stone Strangury and Agues the Defendant hath pleaded Potions pro ulceribus morbis c. talibus consimilibus which is a more large Authority than the Statute limits And for these the plea is ill It is a rule that a plea ought to be issuable but this is not as it is pleaded for the Defendant here ought to have distinguished his plea and have justified in part as in applying outward Plasters c. to outward Diseases and Potions to Stone Strangury and Ague As to the Replication it hath béen objected that it is a departure To which I say that if any new matter be pleaded it is a departure but here is none For the Replication which supports and inforces the Declaration is by the Statute 1 Mariae and this could not have béen alledged in the Declaration and there was no reason to shew the Statute 1 Mariae untill the Statute of 34 H. 8. was pleaded by the Defendant And as to the matter in law that is how far the Statute of 34 H. 8. gave liberty against the Statute 14 H. 8. to what persons and for what things is the Question And upon consideration of all the law of 34 H. 8. we be of opinion that this Statute doth not reach neither in Words nor in Intent and meaning to give liberty to any person that practises or exercises for lucre and profit and it is apparent by the preamble and the Statute also that this was made principally against Chirurgeons which were covetous c. And therefore the Statute hath limited who should practise and for what diseases and the parties licensed thereby were those which were good honest people as old Women and such as would give neighbourly Physick for charity and piety and not such as look for gain thereby as Empiricks that do not doe any thing for piety and charity So that this Statute excludes all those that take any money or gain And this Statute which was intended against Surgeons in truth helps them for it gives to them liberty to give Pills and Potions as well as to apply outward Medicines to outward diseases and such construction shall be made And Surgery is onely that which is to be done with the hand c. And moreover we be of opinion that if this Statute of 34 H. 8. had abridged the Statute 14 H. 8. yet that the Statute of 1 Mariae hath setled all on foot again of 14 H. 8. in as large manner as it ever was before for it concludes any Act to the contrary notwithstanding And it was made to suppress unskilfull men But this Statute of 34 H. 8. and Dr. Langton's case Mich. 3 Jac. B. R. rot 438. versus Gardiner is express in this point yet there the plea was better than this is And yet after it had depended 3 years judgment was given against the Defendant With this he concluded and commanded Iudgment to be entred for the Plaintiff against the Defendant College of Physicians against Bugge In magno Rotulo de Anno xxiii Regis Caroli in Item Adhuc Item Item Res London PRaesidens Colleg ' Communitas Medicor ' Lond ' deb ' 27 li. 10 s. de medietate 55 li. versus Johannem Bugge de Parochia Ecclesiae Christi London recuperat ' per Judicium Cur ' quia exercuit facultatem Medicin ' ibidem per spatium xi mens integr ' non existen ' admiss ad exercend ' occupand ' dict' facultat ' medicin ' per Praesident ' Collegium seu Communitat ' facultat ' Medicin ' London literis sigillo suo communi sigillat ' contra formam Statuti in hujusmodi casu edit ' provis super ipsos onerat ' virtute Ordinis hujus Scacc ' Dat' tertio Julii Anno 15 Regis Caroli But the said sum of 27 li. 10 s. is allowed to the President and College of the faculty of Physick within the City of London by Letters Patents under the Great Seal of England bearing date the eighth day of October in the fifteenth year of the late King James of England and of Scotland the Fifty first and by Iudgment of the Barons of this Court of Publick Exchequer entred amongst the Records of Easter Term in the Seventh year of the Reign of the late King Charles in the Custody of the first Remembrancer there Roll the xxiiii And they are quitt Ex. by He. Croke Clerk of the Pipe D. Termino Sancti Michaelis anno regni Domini Caroli secundi nunc Regis Angliae c. xxvii rot 530. MEmorand ' quod die Sabbati prox ' posttres septimanas Sancti Michaelis isto eodem Termino coram domino Rege apud Westm ' ven ' Praesidens Collegium seu Communitas facultat ' Medicinae London qui tam pro domino Rege quà m pro seipsis sequuntur per Franc ' Scot Attorn ' suum protuler ' hic in Cur ' dicti domini Regis tunc ibidem quandam billam suam versus Adrianum Huybert alias Hybert in custod ' Marr ' c. de placito debiti Et sunt pleg ' de prosequend ' scilicet Johannes Doe Ricardus Roe Quae quidem billa sequitur in haec verba ss London ss Presidens Collegium seu Communitas facultat ' medicinae London qui tam pro domino Rege quam pro seipsis sequuntur queruntur de Adriano Huybert alias Hybert in custod ' Marr ' Maresc ' domini Regis coram ipso Rege existen ' de placito quòd reddat eidem domino Regi ac praefat ' Praesident ' Collegio seu Communitati qui tam c. centum libras legalis Monet ' Angl ' quas eis debet injuste detinet pro eo videlicet quòd cum Henricus Octavus nuper Rex Angliae per literas